Gundersen headed for new trial

The Humboldt County District Attorney's Office has decided to retry a former Blue Lake police chief on weapons charges.

District Attorney Paul Gallegos has been mulling whether to retry the case or dismiss the charges since March, when an appellate court reversed a pair of 2008 convictions of former police Chief David Ray Gundersen for illegally possessing both a submachine gun and a pistol with a silencer.

At a June 1 hearing in the case, Humboldt County Superior Court Judge Bruce Watson indicated Gundersen may be suffering from "some serious medical issues," and Gallegos said that might be a factor in his decision on how to proceed and requested information from Gundersen's attorney regarding his medical condition. Gallegos said at the time that the question of whether to try someone with a "compromising medical condition," who may not be able to serve a potential sentence imposed by the court, is a legitimate one.

"We'll look at that," he said. "We just need to make sure that is, in fact, the truth."

Gallegos wasn't present at today's hearing, but Gundersen's attorney Kaleb Cockrum said the district attorney's office has indicated it will proceed toward retrying the former police chief.

"We were not able to provide the information Mr. Gallegos was asking for and he indicated he will proceed with refiling the case against Mr. Gundersen," Cockrum said.

Cockrum -- who until Friday had represented Gundersen on limited basis -- was appointed to be Gundersen's attorney for the case after he told Watson he couldn't afford to hire one.

The weapons charges stem from a case the district attorney's office brought against Gundersen in 2008, while he was still Blue Lake's chief of police.

Gundersen was arrested Feb. 8, 2008, after his wife Darcie Seal -- then a sergeant on the force -- told investigators that her husband repeatedly raped her while she slept under the influence of the sleeping aid Lunesta and other drugs. Gallegos charged Gundersen with more than two dozen counts of spousal rape with the use of an intoxicant, illegal weapons possession and violating a court order. The case ultimately led to the demise of the Blue Lake Police Department, which was disbanded in May 2008.

While it is the policy of the Times-Standard not to identify alleged sexual assault victims, Seal had requested that both the paper and the court use her real name.

After Seal recanted her allegations at trial -- saying her husband never engaged in nonconsensual sex with her -- a jury acquitted Gundersen of the most serious offenses but convicted him of 14 counts.

Of those, only a misdemeanor conviction for violating a court order stands today. Eleven convictions for misdemeanor battery for taking lewd pictures of Seal while she slept were tossed out due to statute of limitations issues, and an appellate court found in March that Watson incorrectly instructed the jury as to the firearms offenses.

At trial, Gallegos argued that Gundersen possessed a Heckler and Koch MP5 submachine gun and a Mark 23 pistol with an attached silencer outside the scope of his duties with the police department, noting that the firearms were found in a safe at Gundersen's McKinleyville home and did not appear on an inventory list at the Blue Lake Police Department.

Gundersen's attorney Russell Clanton argued that his client was on duty as police chief 24 hours a day, seven days a week, so it wasn't unusual that he had the weapons at his home, where he had after-hours calls from the police department forwarded.

The jury found that Gundersen possessed the weapons illegally -- that is outside the scope of his law enforcement duties. But the appellate court ruled that Watson had erred in his instructions to the jury on the firearms offenses and exceptions that allow law enforcement officers to possess both submachine guns and silencers within the scope of their duties. Watson didn't, the appellate court determined, explicitly tell the jury that it was the prosecution's burden to prove beyond a reasonable doubt that Gundersen's case didn't fit those exceptions.

In the ruling, however, the court made explicitly clear it was not stating Gundersen was innocent.

"Had the jury been properly instructed, we could confidently say the evidence was sufficient to support its verdict," the ruling stated. "But the evidence did not compel that result so surely that we can say the jury would necessarily have found (Gundersen) guilty if it understood the prosecution was required to prove beyond a reasonable doubt that the exception did not apply."

Together, the firearms charges each carry a maximum penalty of three years in state prison, though Watson released Gundersen on four year's probation and credit for about nine months served in county jail after his 2008 convictions.

Gundersen is due back in court Sept. 17, at which time a trial date is expected to be set in the case.

In an email to the Times-Standard, Gallegos indicated his office may look to resolve the case prior to trial.

"At this point, we are moving forward," he said. "We will continue to look to meaningfully resolve the case in an appropriate and just manner."